STATE OF NEW JERSEY v. JAMES M. WASHINGTON

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1082-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES M. WASHINGTON,

     Defendant-Appellant.
____________________________

                    Submitted October 22, 2019 – Decided October 30, 2019

                    Before Judges Fisher and Rose.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 15-03-0306.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David Anthony Gies, Designated Counsel,
                    on the briefs).

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Brett A. Berman, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      At the conclusion of a two-day trial, defendant – a prison inmate serving

a fifty-year term with a twenty-five-year period of parole ineligibility – was

convicted of two counts of third-degree possession of a cellular device inside a

correctional facility,  N.J.S.A. 2C:29-10(b). After the verdict, defendant moved

for a new trial, arguing the State failed to prove his possession of the devices.

The trial judge denied the motion and sentenced defendant, a persistent offender,

to concurrent six-year prison terms, with two-year periods of parole ineligibility,

to be served after completion of the term defendant was then – and still is –

serving.

      Defendant appeals, arguing: (1) the judge's denial of the new trial motion

"resulted in a miscarriage of justice" because the ruling "was based on

inadmissible hearsay evidence"; and (2) the judge imposed an excessive

sentence because, in ordering that the prison term follow completion of the term

defendant was serving, the judge "did not consider the actual facts of the crimes

for which he was convicted." We find insufficient merit in these arguments to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We only comment

briefly on defendant's first point.

      The evidence adduced at trial revealed that a corrections officer's search

of defendant's cell uncovered a cellular phone and two chargers secreted inside


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a radio. An investigator's further examination of the radio uncovered another

cellular phone. At trial, the investigator testified he knew the radio belonged to

defendant because it was engraved with a prison serial number, which, when

compared to the prison's log, identified the radio as belonging to defendant. The

investigator explained in detail that the log was kept and maintained in the

prison's ordinary course of business, thereby providing a sufficient foundation

for their admission. N.J.R.E. 803(c)(6); see also Carmona v. Resorts Int'l Hotel,

Inc.,  189 N.J. 354, 380 (2007); Hahnemann Univ. Hosp. v. Dudnick,  292 N.J.

Super. 11, 17 (App. Div. 1996). The worth of that evidence was for the jury to

weigh.

      Even if defendant's authentication argument had merit, admission of the

prison records caused him no prejudice because other evidence unmistakably

demonstrated defendant's ownership: the radio was found in a cell occupied

only by defendant.    The jury was entitled to find from this evidence that

defendant had either actual or constructive possession of the radio and the

cellular phones within.

      Affirmed.




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